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R E F L E T S Brief Information on Legal Developments of Community Interest

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R E F L E T S Brief Information on Legal Developments of Community Interest Library, Documentation and No. 1/2010 Research Directorate R E F L E T S Brief information on legal developments of Community interest Contents organisations ......................... - 26 - A. Case law ................................. - 1 Human Rights Committee ............. - 26 - - World Trade Organisation…………. - 27 - I. European and international courts.... - 1 C. National legislation............... - 28 - - Germany ....................................... - 28 - European Court of Human Rights.......... - 1 - Belgium ........................................ - 28 - Permanent Review Court of MERCOSUR .... - 4 Lithuania ....................................... - 29 - - Romania ........................................ - 30 - United Kingdom ............................ - 30 II. National courts ................................. - 4 - Sweden .......................................... - 31 1. Member States ................................. - 4 - D. Extracts from legal literature - 32- Germany .......................................... - 4 E. Brief summaries .................. - 35 - - Belgium ........................................... - 7 - Finland ............................................. - 8 The publication Reflets is available on Curia - (http://curia.europa.eu) under Library and documentation/Legal France .............................................. - 9 information of European Union interest/“Reflets” and on the - intranet of the Research and Documentation department. Ireland ........................................... - 11 - Italy ............................................... - 13 - A. Case law Malta ............................................. - 14 - I. European and international courts The Netherlands ............................. - 15 - Poland ............................................ - 17 European Court of Human Rights - Czech Republic .............................. - 18 - European Convention on Human Rights – Romania ......................................... - 20 Right to a fair trial – Applicability of - Article 6(1) of the Convention to interim United Kingdom ............................ - 22 interdict proceedings – New approach by the - ECHR – Inalienability of Article 6 2. Non-EU countries .......................... - 24 requirements concerning the independence - and impartiality of the court – Close family Russia ............................................ - 24 relationship between the judge and the - Switzerland .................................... - 25 respondent’s lawyer in interdict proceedings - – Violation of Article 6(1) of the Convention B. Practice of international Reflets no. 1/2010 A. Case law On 15 October 2009, the Grand Chamber of In the main proceedings, the sister of the the European Court of Human Rights issued a appellant, Ms M., had been taken to civil court judgment in the Micallef v. Malta case, in by her neighbour over a neighbourly dispute. which it concluded by eleven votes to six that Her neighbour had obtained an interdict Article 6(1) of the Convention (the right to a restraining Ms M. from hanging clothes out to fair trial) had been violated in that the dry over the courtyard of his apartment. Ms M. requirement for impartiality had not been met complained that in the appeal proceedings in interim interdict proceedings against the interdict, the Chief Justice was not . impartial because he was the brother and uncle, respectively, of the lawyers who had assisted Under the former case law of the ECHR, the neighbour. After Ms M.’s death, her preliminary proceedings, such as those leading brother lodged an appeal with the ECHR. to the adoption of an interim measure like an interdict, did not usually incur the protection set As regards the admissibility of the appeal, the out in Article 6 of the Convention. However, the ECHR found that the appellant could be ECHR found that there is currently a viewed as a victim in this case since, on the widespread consensus among the Member one hand, he had to pay the costs of the States of the Council of Europe that Article 6 proceedings launched by his sister and, on the should apply to interim measures, given that the other hand, the case deals with issues related Member States implicitly or explicitly provide to proper administration of justice and was for such protection. Furthermore, the ECHR thus a matter of general interest. The appellant held that similar protection is provided in the therefore had sufficient interest in the case to case law of the Court of Justice of the European lodge an appeal. Furthermore, the ECHR held Communities, which requires that interim that the case in question dealt with a civil right, measures respect guarantees relating to a fair meaning that Article 6was applicable. As for trial, particularly the right to be heard (judgment the merits of the case, the ECHR found that of 21 May 1980, Bernard Denilauler v. SNC the appellant’s fears concerning the Couchet Frères, 125/79, Rec. p. 1553, see also impartiality of the court were objectively Article 47 of the Charter of Fundamental Rights justified, given the close family relationship of the European Union). between the respondent’s lawyer and the Chief Justice, so Article 6(1) of the Convention had The ECHR reasoned that since many states been violated. face “considerable backlogs in their overburdened justice systems leading to European Court of Human Rights, judgment of excessively long proceedings, a judge's 15 October 2009, Micallef v. Malta decision on an injunction will often be (application no. 17056/06) tantamount to a decision on the merits of the www.echr.coe.int/echr claim for a substantial period of time, even permanently in exceptional cases. It follows IA/32459-A [TLA] that, frequently, interim and main proceedings decide the same ‘civil rights or obligations’ and have the same resulting long lasting or - - - - - permanent effects” (no. 79). The ECHR therefore decided that it would be European Convention on Human Rights - appropriate to change its case law and found Nulla poena sine lege – Right to a fair trial - that Article 6 should apply if the right in Principle of the retroactive application of the question is ‘civil in nature’ and if the interim more lenient penalty – New approach for the measure is determinative of the civil right at ECHR – Person standing trial for murder –Trial stake. However, in some exceptional cases, under summary procedure, with the consent of such as when the effectiveness of the interim the accused, entailing a reduced sentence – Life measure depends on a quick decision-making imprisonment replaced by 30 years’ process, it may not be possible to comply with imprisonment after the offences were all of the requirements of Article 6. committed – Reduced sentence subsequently Nonetheless, the ECHR finds that the independence and impartiality of the court are inalienable guarantees. Reflets no. 1/2010 A. Case law withdrawn – Sentencing to life imprisonment When the offences were committed, it was not – Violation of Articles 6 and 7 of the yet possible to reduce a sentence of life Convention imprisonment, but during preliminary investigations, a law came into force according In its judgment of 17 September 2009 on the to which a sentence of 30 years’ imprisonment case Scoppola v. Italy, the Grand Chamber of could substitute for a sentence of life the European Court of Human Rights imprisonment where the defendant was tried concluded by eleven votes to six that it would under summary procedure. The appellant was amend its case law on Article 7 of the originally sentenced 30 years’ imprisonment. European Convention on Human Rights (no Yet according to a decree law that came into penalty without law). The Court henceforth force on the day the verdict was delivered, trial holds that Article 7 of the Convention under summary procedure could only result in a guarantees not only the principle of sentence of life imprisonment with daytime non-retrospectiveness of more stringent isolation being reduced to a sentence of criminal laws, but also, implicitly, the principle ordinary life imprisonment. In the end, the of retroactive application of the more lenient appellant was sentenced to life imprisonment criminal law. “That principle is embodied in following the cassation of the original decision. the rule that where there are differences between the criminal law in force at the time of The Court ruled that in light of the above, the the commission of the offence and subsequent respondent State had not met its obligation to criminal laws enacted before a final judgment allow the appellant to take advantage of the is rendered, the courts must apply the law provision for a more lenient penalty that entered whose provisions are most favourable to the into force after the offences were committed. defendant” (no. 109). Consequently, the ECHR decided that Article 7.1 of the Convention had been violated The ECHR found that a consensus has emerged in the case in point. at European and international level around the view that application of a criminal law Furthermore, the ECHR unanimously providing for a more lenient penalty, even one concluded that Article 6 had been violated. enacted after the offence was committed, has The Court found that State parties were under become a fundamental principle of criminal law. no obligation to adopt simplified procedures, In light of this, the ECHR referred to various but that where such procedures existed, it sources including the Charter of Fundamental would be contrary to the principle of legal
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